From the long (>10K-word) opinion in In re S.B., decided Friday by Ohio Court of Appeals Judge Matthew R. Byrne, joined by Judges Robert A. Hendrickson and Robin N. Piper:
Though not stated explicitly, there is some suggestion in the state’s brief and in the juvenile court’s permanent custody decision that Mother and Father were unfit as parents because they both were initially reluctant to embrace Sara’s announcement that she was transgender and/or using male pronouns. We disagree.
There is no requirement in Ohio law that parents must unquestioningly accept and support their minor children’s claims of transsexual identity or preferred pronouns. In fact, this issue remains hotly-contested socially, politically, and legally. As an example, the State of Ohio has banned so-called “gender-affirming care” for minors because of the inherent risk of providing such treatments to minors, whose minds are developing and may change. That statute is currently being litigated. Meanwhile, the United States Supreme Court has upheld a similar ban in Tennessee. Quite recently, Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, emphasized that “the doctrine of substantive due process has long embraced a parent’s right to raise her child, which includes the right to participate in significant decisions about her child’s mental health.”
From a best-interest analysis perspective, we see no serious concern presented by Mother’s and Father’s cautious reactions to Sara’s disclosure of her perceived transgender status and preference for male pronouns. This lack of concern is particularly bolstered here, where both Karen and Sara’s therapist testified that Sara is struggling with gender identity and sexuality, and Karen explained that Sara tended to “change[ ] her sexuality every four to five weeks.” Children who struggle with these issues deserve sober and sensitive guidance, and Ohio law does not require parents unquestioningly to accept whatever their children say about their gender identity or sexuality at that particular moment.
There is also a possible suggestion in the state’s brief and in the juvenile court’s decision that Mother and Father should be faulted, in a best-interest analysis, for not unquestioningly supporting Sara’s turn away from their family’s Messianic Judaism. This is also not supported by Ohio law. Parents are free to assist and guide their children in the development of their religious faith…. “[P]arents have a fundamental right to educate their children, including the right to communicate their moral and religious values … and ‘direct the religious upbringing of their children.'” …
Nonetheless, the court held that the juvenile court’s decision terminating the mother’s and father’s parental rights wasn’t “against the manifest weight of the evidence”; here’s an excerpt from the discussion of the facts, and of the parties arguments related to gender identity and religion:
Sara, a biological female, was born in 2010, while Mother and Father were married..} Her parents divorced in 2015. Mother later married a man we will refer to as “Second Husband.” Mother then became the primary caretaker of Sara and Second Husband’s two minor daughters, who we will refer to as Sara’s “stepsisters.” At the time of the permanent custody hearing, Sara was 14 years old….
In March 2023, Mother, Sara, and the stepsisters were temporarily staying with Mother’s adult daughter, “Kim,” in Wilmington, Clinton County, Ohio. Police arrested and charged Mother with domestic violence after she was alleged to have physically assaulted Kim during a domestic dispute. During the police investigation, Mother revealed that Sara and her stepsisters had been living in Clinton County in Mother’s Jeep after Second Husband lost his job and abandoned them. This led to a March 14, 2023 report to the Agency [Clinton County Children Services] that Sara and the stepsisters were homeless and exposed to domestic violence.
While Mother was in jail, Sara and the stepsisters initially stayed with Kim, but they were soon placed with a foster family. That placement ended after Sara struck one of the stepsisters. Sara was then placed at One Way Farm for a couple of weeks.
Father picked up Mother when she was released from jail. After her release, Mother and Father took drug tests. Mother tested positive for methamphetamine and THC and Father tested positive for alcohol. As a result, the Agency asked Mother and Father for potential alternative placements for Sara, but they did not provide any names.
On March 17, 2023, the Agency filed a motion for emergency custody of Sara in the Clinton County Court of Common Pleas, Juvenile Division. The juvenile court granted the Agency’s request that same day. On March 20 and 21, 2023, the juvenile court conducted an emergency shelter care hearing. On March 21, 2023, the Agency filed a complaint with the juvenile court, alleging that Sara was neglected and dependent. On the same day, the Agency filed for temporary custody of Sara. The juvenile court granted the Agency’s motion for temporary custody and placed Sara in a qualified residential treatment program.
On April 9, 2023, the Agency placed Sara with her half sister, “Karen.” Karen is Father’s adult daughter from a previous relationship, and so is not related to Mother. Sara continued to reside with Karen through the date of the permanent custody hearing in this case….
[I]n working with Sara, Mother, and Father, the Agency developed additional concerns: Mother’s drug use (she twice tested positive for methamphetamines); educational neglect of Sara; the mental health of Sara, Mother, and Father; and Sara’s physical health. Regarding Sara’s mental and physical health, the Agency was concerned because Sara flapped her hands continuously, would not make eye contact, had suicidal ideations, had a prominent lisp, and had not seen doctors regularly….
[6.] Sara’s … Gender Identity Issues
State’s Witnesses’ Perspectives …
Channell testified that Sara has struggled with her sexuality and gender identity, and preferred “they/them” pronouns at the time of the permanent custody hearing. But Channell referred to Sara as “she” and testified that she would feel comfortable calling Sara a “she” in front of her. Channell explained that while Sara thought she had gender dysphoria, Channell in her professional opinion denied that Sara has gender dysphoria and testified that it is not a major issue for Sara. She also testified that Sara’s self-harm and suicidal ideation are motivated by past trauma, rather than gender-related issues….
Karen testified that Sara “changes her sexuality every four to five weeks” and that she lets Sara work these issues out on her own. Karen testified that Sara “came out” to her parents. Karen was present when Sara came out to Father, and Father handled the conversation “really well” and was “calm.” Karen testified that Sara wanted to change her name, but not for gender-identity-related reasons; instead, Sara indicated she wanted to change her name because she associated her given name with being yelled at. Karen opined that Sara’s struggles with body dysphoria are actually related to her weight, rather than gender-related issues.
Mother’s Perspective …
Mother knew that Sara was struggling with gender identity and sexuality. She testified that when Sara initially informed her of her perceived gender identity and preferred pronouns, she was surprised and uncomfortable discussing the issue with a 13-year-old. She told Sara that she was uncomfortable and that “if she still felt this way in the future when she comes home, we would work through this.” Mother later testified that Sara had since aged, and as a result Mother no longer cared what Sara wanted to be called. She also stated that Sara is her daughter and that she loves her….
[8.] Religious Practice
Mother’s Perspective
Mother testified that she, Father, and Second Husband are all Messianic Jews. While she did not believe Sara was old enough to make the decision to no longer practice Messianic Judaism when Sara still lived with Mother, she did believe Sara was old enough to make this decision at the time of the permanent custody hearing.
Father’s Perspective
Father expressed his desire for Sara to continue practicing Messianic Judaism. He also expressed his strong opposition to Karen’s plan to send Sara to a private Catholic high school. He characterized this plan as “unacceptable” because, in his view, Catholics practice “paganism.”
State’s Witnesses’ Perspectives
Channell testified that Sara previously had “a lot of anger” about religion, but she had recently had “some progress with that.”
Karen testified that Sara is now “staunchly anti-religious,” and that Sara’s religious upbringing was a very rule-based, penalty-based system. Karen has worked with Sara to help her understand why some people are religious….
